I know Queen Elizabeth II is considered pretty conservative, but it sure took a long time (like, over 939 years) for the Royals to drop French as the official language of menus in the palace. Language Legend has a more interesting discussion of it than the Telegraph article linked to in the post title.

This seems to me to be a great set-up for a "law of unintended consequences" story 30 years down the road (something Huxley-like, such as, "...Arab culture and Islam was able to permeate American society and political thought during the 30's and 40's in part because the government encouraged widespread acquisition of the language a generation earlier, apparently with the thought that half the American workforce could be employed in espionage and security analysis during the brief period when militant Arab states were viewed as the primary threat to American security..."). On the other hand, I WISH my kids were getting more foreign language instruction in school instead of some of the fluffy computer classes, etc. And I can't complain about people learning Arabic, because I ended up in Amman, Jordan doing an Arabic immersion course after college (through a series of changed plans, and I've forgotten almost all of it, I think). I just thought the scope of the government push for this is strange...wouldn't Hindi and Mandarin be more useful for expansion of global markets? Just how strategic can this be?

Friday, February 25, 2005

I have an article forthcoming in the Journal of Law & Urban Policy about the new cocaine vaccine, in which I suggest that there will be widespread calls for immunizing the general public, not just addicts in rehab programs (the oringinally intended use of the vaccine). But here is an article from The Age about parents groups already calling for universal vaccination (BTW, the current state of the technology is a temporary inoculation that must be repeated every few months - it is not yet know if the body eventually develops a permanent immunity):

A group of Queensland Nationals want the Federal Government to investigategiving an anti-junkie vaccination to children under 12 months old. The vaccination, under development in the UK, would render children immune to becoming smokers or drug users and become part of the national measles, mumps and rubella vaccination program. Tis weekend's Queensland Nationals central council meeting will debate calling for the investigation. Drugs are a scourge," said Nationals member Ken Wilson. "I feel strongly about this and I'm inviting the Federal Government to investigate it and if it proves worthwhile, then do a vaccination program." Britain's Independent reported the jab would block out the euphoria associated with cocaine and heroin, and was due to be marketed within two years in Britain where the Department of Trade and Industry has set up a project to find scientific ways to break drug addictions. Bitish biotech firm Xenova has conducted trials of an anti-cocaine vaccine that showed that 58 per cent of patients remained cocaine-free after three months.

Wednesday, February 23, 2005

The Milwaukee Archdiocese of the Roman Catholic Church is liable for a $17 million verdict over a car accident caused by a church volunteer. The decision is noteworthy from a legal standpoint because the volunteer was actually driving on behalf of a parachurch organization (Legion of Mary) that had a chapter in the parish. (The Archdiocese is also facing unrelated charges of cover-ups for child molestation by the clergy).

The church member had been a volunteer driver for the Legion of Mary (mostly helping transport the elderly to services) for about 40 years before this accident. From the article: "That day, she was delivering a statue of the Virgin Mary to a parishioner when she ran a red light and crashed into the car of semiretired barber Hjalmer Heikkinen. The man's car slid across the pavement and into a utility pole, and he has been paralyzed ever since, dependent on his family's care. His right leg later had to be amputated above the knee because of an infection, and his barbershop - where he had been trimming hair - closed." How the jury derived the amount of the verdict: "The jury awarded Heikkinen $10 million for his pain, suffering and disability since the accident, another $5 million for future agonies and $500,000 more to compensate his wife of 61 years for her losses because of the wreck. He was awarded $558,366 for his medical bills so far, according to a total set by Circuit Judge Michael D. Guolee, and the jury awarded Heikkinen $750,000 more for future medical expenses."

For readers who find the $17 million verdict excessive, please note that the victim offeredto settle for $3 million last Septemeber, but the church refused. I find the liability for an affiliated parachurch group's activities more significant than the size of the verdict. As a spokesperson for the Archdiocese said, the volunteer "was not performing duties for Christ King Parish nor for the archdiocese when this terrible accident happened."

The court said that jury findings may be necessary for incarceration sentences, but not for ordering a criminal to make restitution to the victim. Click on the post title to get the text of the decision.

Relax, it wasn't billions of dollars. The court upheld a $150,000 punitive award against an insurance company for unreasonably delaying payment on a property damage claim that was diminutive by comparison.

A judge in Boston has held that a church (in this case, a Jehovah's Witnesses group) has a fiduciary duty to protect its members from being molested by the clergy. This appears to be a new step in the development of church liability law; whereas many of the cases against the Roman Catholic Church in recent years centered on allegations that the hierarchy knowingly allowed the abuse to continue, this rule would create almost strict liability for churches. From the article: "A Superior Court judge has ruled that a Jehovah's Witness church in Boston can be sued for breaking its trust and legal duty to a girl who claims she was sexually abused by one of the church's ministerial servants." This ruling appears to be the first time a court (at least in that state) has ruled that church officials have a "fiduciary duty" to their members.

"Fiduciary duty" is a legal term of art: in practice, it means that certain people in positions of trust have a legal duty to put another's interests ahead of their own interests (not unlike the typical theological definition offered for "agape" love mandated in the New Testament). Trustees, certain business associates, lawyers and doctors are among the most common categories of people held to this standard. Smith's ruling also is expected to open another legal channel for attorneys to bring civil suits against churches for clergy abuse cases, according to Lisa Bruno, news editor for Massachusetts Lawyers Weekly. Given the overlap between the definition of a "fiduciary duty" and the New Testament commandment for the church, there should not be much tension here.

It was easy to see this coming, I think; there has been a growing frustration about the fact that there seems to be insufficient legal incentives for religious groups to prevent serious clergy abuse. People tend to be more trusting of relgious groups and clergy, leaving themselves vulnerable to exploitation where there are niadequate institutional safeguards or screening of those in leadership positions. Such trust and concomitant vulnerability seems to be the underlying essence of a legal fiduciary. In addition, institutions are often the best insurers against these types of risks: they can purchase liability insurance organizationally (obtaining economies of scale), and they have private or internal information about potential loci of abuse (information not readily available to outsiders). The information asymmetry puts the religious organization in the best position to identify potential hazards and prevent the harms before they occur. I understand that the ruling is unfavorable to churches in the immediate sense, but in the long run, denying that there is a fiduciary duty to members - that members can "trust" the church in a special way - undermines the credibility of any religious or spiritual institution.

Thursday, February 17, 2005

Business Insurance reports about a new study that appears to show hefty investor losses in securities class action lawsuits drove settlements to unprecedented levels in 2004. Click on the post title to read the article.

Click on the link to read the full text of the decision by the 2nd Circuit in Green v. U.S.(.pdf file). Quote: “...a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive.”

"New EU laws promising compensation of between £170 and £416 to stranded and delayed airline passengers come into force today." I can't tell you how many times I've fantasized about having a regime like that here, when I've paid $400 for what I thought was the privilege of arriving at my destination at a certain place and time, but the airline acts as though I paid for the privilege of having them as my travel companions, no matter when I leave or arrive. I use the airlines a lot and harbor a lot of resentment against them (another reason to feel passionate about the DVT cases pending in federal courts around the country). The link in the title above is for the Reuters-UK story; click herefor a "Q&A" by the Guardian.My favorite quote:"This is going to become a lawyer's field day and is why in our view the law is very bad," said Andrew Clarke, director air transport policy for the European Regions Airline Association. Unless, Mr. Clarke, I am a lawyer.

Wednesday, February 16, 2005

Click on the title to read the New York Times article about the Covenant Marriage movement in Arkansas. I did my law review "comment" on Covenant Marriage when it first emerged in Louisiana in the late 1990's, but never published it, unfortunately (for non-lawyers, a law review "comment" is a 60-70 page paper students typically write as part of the requirement for membership on the editorial board of their law school's official academic journal - in my case, the Connecticut Law Review). I've also mentioned it before on this blog (click here). Covenant Marriage is basically a voluntary but legally-binding waiver of one's right to a no-fault divorce. Of course, everyone is free to waive your right to a no-fault divorce by simply choosing to stay married; this is a legal mechanism that allows people to bind themselves so they cannot change their minds later (or risk that spouses changing their minds). Thanks to student Darcy Douglas for sending me the NYT article. For another law prof blogging about this issue, click here.

This NYT article notes a bizarre but predictable turn the movement has taken, a hybridization between the mass-weddings Sun Myung Moon conducted in the 1980's and the individualized legal waiver of one's right to a no-fault divorce. Apparently thousands of people (mostly associated with one or two megachurches) did a collective ceremony to invoke the Covenant Marriage against themselves all at once (the proper preposition from a legal standpoint). Click on READ MORE for my true feelings about this....

My opinion: I have (admittedly unfashionable) Puritanical views about marriage and divorce, of course, and I share the concerns of some leading economists that no-fault divorce has impoverished as many people as it has liberated (and my students know that I am skeptical about any so-called "divorce rate" that is used to either justify or criticize the current legal regime). That being said, I am doubtful about the Covenant Marriage movement. First, there is the old question of why we need legal mechanisms that function like Ulysses' ropes, which he used to bind himself to his ship's mast before he sailed near the Sirens. Wouldn't it make enough of a "statement" if these couples simply nurtured healthy marriage relationships at home and stayed married by choice? Why the need to invoke legal sanctions against oneself, merely to prevent ourselves from changing our minds later? I understand the practice of exacting binding promises from other parties - like in a prenuptial agreement - but this seems mostly directed at oneself. (if the goal is to keep the other person from ever leaving you, you have alternative measures: create an onerous pre-nup, or be more picky in choosing a mate, etc.).

Second, I know there is a tendency for evangelical Christians to hale anything that appears to bolster biblical models for marriage and sexuality, but this particular mechanism seems to encroach a bit on the prohibitions against self-invoked sanctions in Matt. 5:33-37. Why does a real Christian need to attach his or her vow or promise to something secular, like legal sanctions? Why not just keep your word? I can have my Puritanical views and keep my word at the same time. I do not need a legal mechanism to validate my faith or the integrity of my promises. My faith can only be validated by its inherent veracity. I confess I have doubts about any "faith" that needs some kind of affirmation from secular bystanders, or the government, in order to be strengthened or legitimized.

At this point I anticipate the objection that the value of a Covenant Marriage is not to bind oneself with imprecatory vows, but rather to bind one's spouse to stay in the marriage in case the person wants out later. Presumably this would occur mostly in cases of apostasy - it seems unlikely that an "unbeliever" would assent to self-restriction in the first place, and unlikely that a person who is still a faithful adherent would seek to breach it. The problem being addressed, then, is the Christian spouse who later backslides spiritually and consequently quits the marriage. Again, however, using a legal device to prevent such actions runs aground on the Bible itself. Although the Bible forbids believers from initiating divorces against each other, it also commands believers to let an unbelieving spouse out of the marriage, graciously, if they want out. (See1 Cor. 7:15). The person abandoning the marriage may be in the wrong, but they're supposed to be free to go. In this sense, it would seem unbiblical - disobedient to Scripture - to try to use the Covenant Marriage vows as leverage to keep an embittered person in the marriage, even if that person was "wrong" for wanting out in the first place.

Third, I have big doubts about whether this Covenant would hold up legally if it was challenged in court. I studied the Louisiana Covenant Marriage statute carefully and found no provisions for fraud or duress, just required disclosures about previous sexual history and communicable diseases. These disclosures were indeed mandatory, but there was no remedy where someone lied. It was unclear whether pre-marriage deception would be grounds for dissolution of a Covenant Marriage (it was not on the list of enumerated justifications for dissolution). There is also the question of coercion or duress. Disgruntled former church members often claim that their previous church coerced them into all sorts of things (usually various forms of self-denial and unworldiness, but sometimes unpleasant marriages to church members). It is easy to imagine a person who wants "out" of a covenant marriage, who has also lost faith in their church or denomination (for whatever reason), and now claims that they were coerced into this thing by their church leaders - that it was a requirement for membership, or a requirement for having a wedding inside the church, or the only way to avoid severe spiritual stigma, or whatever. And I can imagine many judges sympathizing with this assertion; I would sympathize, and I'm a believer. It is easier still to imagine later claims of coercion, and sympathy for such claims, when the plaintiff gave her rushed assent at high-pressure gathering of 5,000 people, a mass-vowing ceremony. The big crowds certainly garner more media attention for the cause (I confess I wish the New York Times would cover events at my little church!), but the sensational environment may undermine the legal sustainability of the vows themselves.

Christian intellectuals, thinkers, and leaders may undermine the credibility of the Cause when they cheer anything that even "looks like" it leans in a traditional direction. There should be more to Christianity than turning back the clock to 1950, even if the culture has taken some bad turns (even horrible turns) in the meantime. A more searching analysis is warranted.

I you haven't seen this yet, and you're trying to lower your level of optimism about human nature, you could visit www.savetoby.com. The caretaker of what appears to be an abandoned or escaped domesticated rabbit is threatening to EAT his captive (or pet, if you will) if he does not receive $50,000 in donations by a certain date. That's pretty unbelievable, but here is the best part: he claims to have received over $14,000 in donations already, if I read it correctly (the site accepts major credit cards). Thanks to Ashley, a student in my Law & Economics class, for forwarding me the link. The "give-me-money-or-I-eat-the-hostage" thing seems wrong somehow, but not necessarily illegal.

I described the pet as either abandoned or escaped because it's coloration seems much lighter than the many wild rabbits I have seen. It looks like a pet store rabbit to me. But I do not claim to be an expert. Click on READ MORE for additional discussion...I am sure that animal rights advocates will find this deeply disturbing (as I said, it is not one of the shining moments for our species), but I am not sure this violates the typical animal cruelty laws - especially since rabbit dishes can be ordered at many fine restaurants in every metropolitan area. It mostly seems like cruelty to rabbit lovers - actually, outright exploitation. I was in junior high when Saturday Night Live aired Eddie Murphy's gag about "Larry the Lobster" (I'm not sure if my 1L students were even born yet), where the show ran a mock telethon to save a lobster from being cooked on national television (supposedly this was an unplanned stunt that Murphy pulled "live" without warning, interrupting a plan to cook the creature). But there was no ransom being demanded back then. The ransom thing is troubling. I don't care if Toby's owner eats him (I've eaten rabbit before with no regrets, although I prefer eating animals that are larger than me, for personal reasons - plus the owner risks getting certain parasites), but anyone donating money with the sincere desire to save Toby is surely encouraging follow up stunts; this would be the easiest $14,000 ever made. Could a wave of animal-kidnapping legislation be far behind?

I had a friend once whose family went through hard financial times when he was a kid and his Dad killed and cooked their pet bunny and made them eat it. Pretty traumatic for a little kid - and his Dad got angry that some of the kids refused to eat it at all and were wasting a good dinner, the only meat they could afford. I also went through a phase several years ago where I kept a little vegetable garden, and being an obsessive reader, I read every book my local library had about organic gardening. One of the most memorable ones was a book explaining how to be completely self-sufficient, food wise, with less than one acre for a back yard. (that is, how to grow ALL of your family's food on a small suburban lot so you never have to buy anything - it was an elaborate plan for crop maximization, space maximization, seasonal plantings, etc.) Anyway, the last chapter discussed the problem of MEAT, which takes a lot of land - unless you are willing to eat rabbits. The book advocated having at two females and one male, which it said would produce enough offspring to provide a family of four with some meat all throughout the year so they never had to buy any of that, either. I wanted to try it, but I could never get my wife to agree to the idea, unfortunately. :-) She thought it might traumatize the children. This was before we met the guy whose Dad made him eat his pet rabbit.

I've ordered rabbit two or three times in restaurants. I enjoyed it the first time or two, but the last time was particularly unpleasant (the sauce was just too rich or something, I just felt sick afterward) and I never wanted to eat it again. It was also during a luncheon with some unpleasant lawyers from an unpleasant law firm in Connecticut, so it is not a memory I "savor" on that note, either. My wife won't eat it because they are rodents and she believes rodents are full of parasites.

Tuesday, February 15, 2005

Attorney Lynne Stewart's conviction on terrorism charges has lawyers divided over what it means for their profession. It certainly gives professors a more exciting case to discuss in Legal Profession/Professional Responsibility classes than we've had before.

I haven't seen this getting much coverage in most of the major news outlets yet, but here is an excerpt from the AP (click ont he post title for full story):

McDonald's Corp. will pay $8.5 million to settle a lawsuit accusing thefast-food giant of failing to inform consumers of delays in a plan to reduce fatin the cooking oil used for its popular french fries and other foods.BanTransFats.com, a nonprofit advocacy group, sued McDonald's in California state court in 2003, alleging the company did not effectively disclose to the public that it had not switched to a healthier cooking oil.In September 2002, McDonald's announced it would lower trans fat in its cooking oils and said the switch would be completed in five months.In February 2003, McDonald's announced a delay. The lawsuit accused the Oak Brook, Ill.-based company of failing to adequately inform consumers of that delay.The agreement announced Wednesday requires McDonald's to pay $7 million to the American Heart Association to use the proceeds to educate the public about trans fats in foods. Heart-clogging trans fat is made when manufacturers add hydrogen to vegetable oil — a process called hydrogenation. Wednesday's settlement also requires McDonald's to spend $1.5 million publicizing that it has not followed through on its 2002 pledge.

McDonald's also seems to have lost a legal battle in the European Court of Human Rights (click hereor hereor here or herefor the full story):

Two British activists convicted of libelling the U.S. fast food chain McDonald's have won a reversal of the decision at the European Court of Human Rights. The Strasbourg-based court ruled on Tuesday that Helen Steel and David Morris did not receive a fair trial and their freedom of expression was violated by the 1997 judgment ordering them to pay 60,000 sterling in damages. The two had issued a pamphlet in 1984 accusing McDonald's of starving the Third World, destroying rainforests and selling unhealthy food. Their trial was the longest in English legal history.

Friday, February 11, 2005

Here's the opening lines, which tell most of the story (click on the post title to go to the article):

Most federal judges are imposing prison terms within sentencing guidelines eventhough the Supreme Court says they do not need to, according to an analysispresented Thursday to Congress. At the same congressional hearing,however, a high-ranking Justice Department official described anecdotal evidencethat judges are imposing disparate sentences for similar crimes since lastmonth's high court ruling - precisely what the nearly 20-year-old guidelineswere intended to prevent. The two views on how judges are responding tothe decision reflect differences in Congress and the legal community aboutwhether to write new sentencing rules and, if so, how quickly. Just 9 percent of the 733 sentences handed down in the three weeks after the Supreme Court decision and reviewed by the U.S. Sentencing Commission did not comply with the guidelines, said U.S. District Judge Ricardo Hinojosa of Texas, the commission chairman.

"Hundreds of people flocked to the U.S. Court of Appeals for the Federal Circuit on Tuesday to listen to arguments in a case that could affect how patents are interpreted. The Federal Circuit addressed in an en banc hearing whether courts should rely primarily on dictionaries to define the terms that describe the scope of an invention, or look to the description in the patent itself. Phillips v. AWH, 363 F.3d 1207, is one of the most pivotal patent issues to come before the Federal Circuit, generating more than 50 amicus curiae briefs." -Law.com

ALL of the linguists I have read on the subject (which is quite a few - law & linguistics is one of my main areas of interest) think it is ridiculous, if not dangerous, for judges to rely on dictionaries in making decisions. It is not what dictionaries were intended for, and it shows a gross misunderstanding of the way language works.

The 10th Circuit threw out a $15 million punitive damages award in a tobacco case, but upheld the Kansas man's right to sue the tobacco companies - over a disease that cost him his legs. Click herefor an AP article, and click hereto read the actual Court opinion.

On Wednesday the Republican majority in the Senate fought back attempts to change legislation (click on post title for the article) that would send most class action lawsuits to federal court. This appears to be a victory for the tort-reform folks.

I have an article about the new cocain vaccineforthcoming in the Rutgers Journal of Law and Urban Policy, and I follow the news stories about it avidly (I've also had the opportunity to meet and correspond with Thomas Kosten at Yale, the lead researcher on the vaccine's development). The cocain vaccine involves a series of inoculation shots that render the body immune to cocaine - ingesting it produces no effects (the user gets no "high" from it, and also cannot overdose), and the body flushes it out of the system. Developed as a treatment tool, it poses interesting policy questions as a possible condition of parole (because so many felons have a drug history), a condition of welfare payments (to ensure the recipients do not spend their welfare checks on crack or cocaine), or other things (admission into private colleges, employment as an air traffic controller, participation in profession sports, etc.). I'd be happy to forward a draft to those who are interested, and would love to correspond with others researching in the same area.

Thursday, February 03, 2005

A new ruling from the Minnesota Court of Appeals holds that attorneys may be held liable for failing to protect a client's interests with respect to an unsettled area of law. Click on the title above to read the court's opinion.

Wednesday, February 02, 2005

You probably already saw this, but just in case, click on the link to see the story about the large jury award given to the guy whose face has been on Taster's Choice labels ever since he was young and handsome-ish. You know, my older sister was teaching a class to a group of corporate trainees one time, and teased one of the guys for looking like the Gerber Baby (the baby on the Gerber labels) - and the guy got really upset and asked her who told her about this, because he WAS, in fact, the Gerber baby. Here's a collection of news photos from the Taster's Choice stories...

Former model Russell Christoff holds a Taster's Choice package at a news conference in San Francisco on Tuesday, Feb. 1, 2005. A jury has awarded $15.6 million to Christoff, whose image was used for years without his permission on Taster's Choice coffee labels. Christoff, a former model from Northern California, posed for a two-hour Nestle photo shoot in 1986 but figured it was a bust until he stumbled across his likeness on a coffee jar while shopping at a drug store in 2002. (AP Photo/Jeff Chiu)If it's worth THAT much....Maybe I can find a lawyer who will help me pursue a claim for this unauthorized use of my likeness in advertisements a few years ago....

A few people have commented to me in person about my refernce to Edward Tufte's book The Cognitive Style of Power Point, which convinced me to never use it again in teaching (not that I was using it anyway, but now I feel strangely validated). His website, www.edwardtufte.com, has lots of great materials (including tips for students on resume design), but I thought I'd offer some of the posts that turned into sections of his above-mentioned book. I really recommend the book(let) (it's only $7), and I'm happy to circulate the copy I ordered to other people at our school. "Read the full post" has some interesting links.

Click herefor a good thread discussion about Power Point parodies. Click herefor the famous Gettysburg Address parody, and here for the creator's commentary. An interesting thread on the 2003 New York Times article "Power Point Makes You Dumb" is here.

Click herefor a discussion of the mythic numerology of presentations often incorporated into PowerPoint presentations. One example is the purported "6x6x6" rule:

Use no more than six words per bullet, six bullets per image, and six word
slides in a row. Any more words per bullet, and you don't have a bullet. More
than six bullets per slide are difficult to read. By the end of six text-filled
slides you have been talking for about 10 minutes without a visual."
(http://www.acr.org/02meeting/av.html)

Tufte's response:

"The 6-line-only rule seems to come up in witless PP presentations on how to make witless PP presentations. Here is the full 666 rule in action, the Haiku Rule for presentations:"(his book notes that we insult our audiences with presentations following a conginitive style normally used for 6-year-old beginning readers)
Here is a great linkfor a chapter in his forthcoming book, Beautiful Evidence, entitled "Links and Causal Arrows: Ambiguity in Action". Law students should find it to be a good exercise in analytical skills.

I posted earlierabout my least-favorite part of being a professor (grading exams -not because of the tedium, but because it's discouraging). But this week I had one of my favorite parts of the job: a student (3L) dropped off a copy of the academic journal that just published her article, plus a thoughtful thank-you note. I had the opportunity to help her with it (and the publication or "shopping" process) a little bit last spring. It's really rewarding to see students succeed. As a practitioner, she will have the credential of being "published" for the rest of her career. I feel deeply indebted to professors who helped me when I was in law school (with advice, or encouragement, or with my publications); I realized at some point that I couldn't repay them, but I could pass it on. And that's one of the best parts of the job, I think.

Tuesday, February 01, 2005

One of the most famous law professors in the country, Allan Farnsworth of Columbia University, passed away Monday at age 76. He was truly an intellectual giant. Click on the title for the obituary from the New York Lawyer. Click herefor the Jurist obituary, which has more links. You can visit his Columbia faculty page herefor more of his career accomplishments.